(a) No person shall make or cause or permit to be made or caused any music originating from or in connection with the operation of any commercial establishment or enterprise when the level of sound attributable to such music, as measured inside any receiving property dwelling unit:
(1) is in excess of 42 dB(A) as measured with a sound level meter; or
(2) is in excess of 45 dB in any one-third octave band having a center frequency between 63 hertz and 500 hertz (ANSI bands numbers 18 through 27, Inclusive), in accordance with American National Standards Institute standard S1.6-1984; or
(3) causes a 6 dB(C) or more increase in the total sound level above the ambient sound level as measured in decibels in the "C" weighting network provided that the ambient sound level is in excess of 62 dB(C).
(b) (1) There shall be no civil penalty imposed for a first violation of subdivision (a) of this section or of any variance granted by the commissioner in accordance with subdivision (d) of this section if, within 30 days after the issuance of the notice of violation for such violation or, if applicable, within the time granted by the commissioner pursuant to this paragraph, the respondent admits liability for the violation and files a certification with the department in a form and manner and containing such information and documentation as shall be prescribed in the department's rules that (i) permanent improvements or modifications have been made to the establishment, including but not limited to the installation of appropriate sound insulation, isolators, suspension mounting and/or sound mitigation devices or materials and (ii) appropriate sound measurements taken in accordance with the department's rules substantiate that the establishment is in full compliance with the sound levels set forth in this section, and the commissioner accepts such certification of compliance. Such violation may nevertheless serve as a predicate for purposes of imposing penalties for subsequent violations of this section. If completion of such certification as prescribed in the rules of the department cannot be accomplished within 30 days, the respondent may apply to the commissioner for additional time to submit an appropriate certification of compliance, but not more than 30 days. The respondent shall submit such application for additional time to the commissioner within 30 days after the issuance of the violation along with an admission of liability and appropriate documents demonstrating that the remediation process has begun.
(2) Nothing in this subdivision shall be construed to prohibit enforcement personnel from issuing additional notices of violation, summonses or appearance tickets where sound levels exceed the limits set forth in subdivision a of this section during the periods of time set forth in paragraph one of this subdivision for submission of a certification of compliance for a first violation.
(c) In any proceeding under this section it shall be an affirmative defense that the receiving property dwelling unit was not lawfully occupied at the time of the violation.
(d) The commissioner may grant a variance from strict application of the limits set forth in subdivision (a) of this section for a commercial establishment or enterprise that was in operation at the same site prior to the date of enactment of the local law that added this section if he or she finds that there are practical difficulties or unnecessary hardship in the application of such provisions in the specific case, provided that as a condition to the grant of any such variance, sufficient evidence or data is submitted by an applicant that there are physical conditions or zoning district conditions, including irregularity in lot size characteristics and zoning changes, and that as a result of such physical or zoning district conditions, practical difficulties or unnecessary hardship arise in complying with such provisions. In granting a variance the commissioner may impose such terms and conditions as he or she deems necessary to carry out the intent of this section to minimize noise emissions from the site. Application for a waiver shall be submitted in such form and manner as shall be provided by rules of the department and shall include in detail proposed measures which the applicant proposes will minimize sound from the site. A variance granted pursuant to this subdivision shall not be transferable but shall expire upon a change in ownership, size or location of the commercial establishment or enterprise in accordance with the rules of the department. Violation of the conditions of any variance shall be deemed to be a violation of this section.
(Am. L.L. 2021/080, 7/18/2021, eff. 11/15/2021)
Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2005/113 and L.L. 2021/080.